Here’s the release from Colorado State University (Jim Beers):
The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.
Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.
Understanding the river, each other
Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.
“The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”
Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.
Forests and water quality/quantity
Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.
“Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”
Global lessons for local success
“Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.
Change affects all sectors
An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?
“It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”
The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.
Videos, displays and music too
The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.
Officials in charge of the Windy Gap Firming Project are checking to make sure that a Dec. 7 Colorado Supreme Court decision won’t adversely affect the $387.36 million transmountain water diversion project that will benefit the Front Range…
…in December, the Colorado Supreme Court sided with western slope interests against Aurora in case that had to deal with pumping western slope water across the continental divide and storing it on the eastern slope. Aurora had a one-half interest in the Busk-Ivanhoe Diversion Project in western Colorado.
Jim Pokrandt, spokesman for the Colorado River District, said the case relied on storage rights for the water.
“The big crux of the Aurora case is that they didn’t have the storage rights for the transmountain water that they took,” Pokrandt said. “So I’m sure what a lot of folks are doing is looking at their water decrees and seeing if they actually have decreed storage rights for transmountain water. That’s the question for the Windy Gap Firming Project.”
Pokrandt said that in the Colorado River District’s view, the court made the right decision.
“Our position is that water law is water law and under ordinary water law, you need a water right to store water. And Aurora argued that transmountain water didn’t need an exact water right to store it,” Pokrandt said. “But, no you do need that because water law is water law and there’s nothing special about transmountain water.”
The municipal subdistrict of the Northern Colorado Water Conservancy District is leading the Windy Gap Firming Project.
Eric Wilkinson, general manager of the municipal subdistrict, said they have staff researching to make sure the Aurora decision is unique to the case and to verify that the Windy Gap Firming Project is on legally stable ground moving forward.
“The Busk-Ivanhoe decision has a very significant application statewide … what the (Colorado) Supreme Court decision did is apply, in essence, 2016 water rights administration and laws to a decree that is dated 1928,” Wilkinson said.
Wilkinson added that staff are verifying that they have the water decrees to store Windy Gap water on the within the basin of use, which would be on the western slope.
Northern Spokesman Brian Werner said they are fairly certain the Colorado Supreme Court decision shouldn’t have major impacts on the Windy Gap Firming Project, which has been in the works since 2004.
“I want to emphasize that intent to store, we’ve had that all along with the Windy Gap Firming Project,” Werner said. “So if you’re asking what the impact (of the decision) is on the Windy Gap Firming Project, I can tell you there shouldn’t be any.”
Wilkinson added that with Colorado water law, nothing is certain forever.
“That’s the intent of our research to get to that point (of certainty),” Wilkinson said.
“But in Colorado water law and some of the interpretations that come out, there is not such a thing as absolute certainty. This Busk-Ivanhoe decision introduced some change in thought that didn’t exist before so say ‘here’s how it will be always and forever in absolute certainty’ is probably unreasonable, but we’re trying to get to a reasonable amount of certainty.”
Coyote Gulch contributor Brent Gardner-Smith took a deep dive into the decision to extract a summary of the water court process for a change of use. Below is his email:
You might appreciate this. In the midst of the Busk opinion is summary of the factors that go into changing a water right. I’ve stripped it of the legal references, but otherwise, it’s the court’s words. Thought you might appreciate it. Not sure what else to do with it yet.
Under Colorado’s doctrine of prior appropriation, a water right is a usufructuary right that affords its owner the right to use and enjoy a portion of the waters of the state.
One does not “own” water, but owns the right to use water within the limitations of this doctrine.
The touchstone of Colorado’s prior appropriation doctrine is beneficial use. That is, an appropriator perfects a right to use water by applying a specified quantity of unappropriated water to a beneficial use.
“Beneficial use” is “that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”
Colorado water law has long recognized the right of water users to make changes to the terms of their decrees—including changes to the type, place, or time of beneficial use; changes to the points of diversion; changes to storage; and changes from direct flow to storage and subsequent application and vice versa.
Permanent changes to a water right must be decreed through the adjudication process established by the legislature … and … parties wishing to change the use of a water right must obtain a water court decree allowing the change in use.
It is inherent in the notion of a ‘change’ of water right that the right itself can only be changed and not enlarged.
This is a basic predicate of water law dating to the nineteenth century; a change application merely continues the rights decreed in the original appropriation in a new form and may not expand the amount of water actually used under the original decree.
In other words, “the right to change a water right is limited to that amount of water actually used beneficially pursuant to the decree at the appropriator’s place of use.”
Thus, in order to determine that a requested change of a water right is merely a change, and will not amount to an enlargement of the original appropriation, the court must quantify the historic use of the right to some degree of precision.
Quantification of the amount of water beneficially consumed pursuant to the decree guards against rewarding wasteful practices or recognizing water claims that are not justified by the nature or extent of the appropriator’s actual need.
An absolute decree confirms that a right of appropriation has vested; the decree entitles the appropriator to use that right through its decreed point of diversion in a specified amount, usually expressed as a flow rate (for a diversion right) or in acre-feet of water (for a storage right).
The term “historic use” refers to the “historic consumptive use” or “historic beneficial consumptive use,” attributable to the appropriation of that quantity of water historically consumed by applying the water to its decreed beneficial use.
However, because “the period and pattern of use are not known with certainty at the time a water right is adjudicated,” the decreed flow rate at the decreed point of diversion is not the same as the matured measure of the water right.
Rather, over an extended period of time, “a pattern of historic diversions and use under the decreed right for its decreed use at its place of use” will become the true measure of the mature water right for change purposes, typically quantified in acre-feet of water consumed.
Crucially, proper analysis of the historic consumptive use of a water right measures the amount of water both actually and lawfully used in accordance with the decree.
Because beneficial use defines the genesis and maturation of every appropriative water right in this state, every decree includes an implied limitation that diversions are limited to those sufficient for the purposes for which the appropriation was made.
Importantly, the actual historic diversion for beneficial use may be less than the decreed rate because, for example, “that amount has simply not been historically needed or applied for the decreed purpose.”
Indeed, we have often observed that when an appropriator exercises the right to change a decreed water right, he runs the real risk that the right will be requantified at an amount less than his original decree, based on the actual historic consumptive use of the right.
In short, an initial change application reopens the original decree for determination of the true measure of the appropriative right’s consumptive use draw on the river system.
In sum, “the fundamental purpose of a change proceeding is to ensure that the true right — that which has ripened by beneficial use over time — is the one that will prevail in its changed form.”
The decision is actually a page-turner for water wonks.
This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.
In the 2 years since a change of in-stream flow (ISF) policies threatened the viability of O’Haver Lake, discussions between officials with the Upper Arkansas Water Conservancy District and the Colorado Water Conservation Board have failed to yield a long-term solution.
At the recent Upper Ark board meeting, attorney Kendall Burgemeister said he has been “trying to work with the CWCB on the Grays Creek-O’Haver ISF issue” and expressed frustration with the lack of progress.
The conservancy district stores water in O’Haver Lake by diverting that water from nearby Grays Creek. Diverting water requires an exchange – a release of water from another source in exchange for diverting water from the creek.
By law, the CWCB holds all ISF water rights in Colorado, and as previously reported in The Mountain Mail (Dec. 16, 2014; Feb. 19, 2015), the agency began placing calls on its ISF rights a little more than 2 years ago.
The CWCB’s ISF right for Grays Creek is 4 cubic feet per second, but Upper Ark staff have documented average flows of 1.5-1.9 cfs. Given the disparity, the CWCB’s ISF call on Grays Creek prevents the Upper Ark district from exchanging water upstream to O’Haver Lake.
Terry Scanga, general manager of the Upper Ark district, previously said the old policy allowed exchanges as long as there were no calling water rights between O’Haver Lake and the point of release for the exchange water.
Since this practice did not injure any water rights, Scanga said he believes the old policy was correct, based on Colorado Revised Statute 37-92-102 (3), which established ISFs as a beneficial use of water in 1973.
The statute states that any ISF appropriation is subordinate to pre-existing “uses or exchanges of water … whether or not previously confirmed by court order or decree.”
Since O’Haver Lake has been used to store water since 1949, Scanga said, the CWCB’s ISF water right, established in 1977, should be subordinate to the conservancy district’s ability to exchange water into the lake.
But at the December board meeting, Burgemeister reported that CWCB staff have so far failed to formally acknowledge the pre-existing use of O’Haver for storing irrigation water due to a lack of data.
During discussion of Burgemeister’s report, Ben Lara, recreation program manager with the U.S. Forest Service Salida Ranger District, commented that the environmental impact statement currently being drafted will “spell out the effects of draining the reservoir,” which is on USFS land.
He also indicated that feedback for the environmental impact statement from Colorado Parks and Wildlife officials acknowledges the importance of the O’Haver Lake fishery.
Greg Policky, Colorado Parks and Wildlife aquatic biologist, did not attend the meeting but later confirmed the importance of the O’Haver fishery, stating, “We feel a cooperative agreement can be reached that reasonably protects the natural environment of Grays Creek while maintaining the recreational fishery in O’Haver Lake.”
Policky’s statement echoed Scanga’s recommendation that the Upper Ark board call for a meeting of all relevant agencies – CWCB, CPW, USFS and Upper Ark district – to attempt to negotiate a long-term agreement acceptable to all parties.
Board members approved Scanga’s recommendation but acknowledged that the district could be compelled to drain the reservoir if the situation is not resolved.
Colorado’s economy depends on water: where it is, where the people who need it live and work, who has rights to it. Fights over those needs are a core part of the state’s history, and they tend to follow a pattern. So in some ways, the fight over the Fraser River in Colorado’s Grand County is familiar.
Denver Water holds unused water rights on the river, which starts in the shadow of Berthoud Pass and courses down the western side of the Continental Divide past Winter Park, Fraser and Tabernash to join the Colorado River outside of Granby.
The agency, looking at the booming population and economy in Denver, now wants to exercise those rights. That means taking more water from the river, piping it under the Indian Peaks and sending it into Gross Reservoir near Boulder.
Some conservationists and environmental groups are crying foul, saying that the river has already been overtaxed (about 60 percent of its existing flow is already diverted to slake Denver’s growing thirst) and it’s time to let the river alone.
But the fight’s pattern is taking some unfamiliar twists and turns. Influential groups like Trout Unlimited and American Rivers, who’ve historically fought diversion projects, support this one. In exchange, Denver Water says it will will help protect and enhance what’s left of the Fraser River.
That compromise has fractured traditional lines in Colorado’s conservation and environmental advocacy community, and fostered new alliances. While these organizations more or less agree on their ultimate goal — to protect and restore the environment — the strategies they use are very different. The big question that divides them: When to compromise?
Denver Water Extends An Olive Branch
Decades ago, environmentalists were not at the top of list of Denver Water’s concerns when it would try to build dams and add capacity. In the 1980s, environmental groups pushed back on a huge proposed dam called Two Forks.
“[Denver Water] told us in so many words: ‘We’re the experts. You’re little environmentalists. Get out of the way,’ ” Dan Luecke, then head of Environmental Defense Fund’s Rocky Mountain office, told High Country News in 2000.
Then, in 1990, an EPA veto torpedoed the project at the last minute.
“That was really a turning point for our organization,” said Kevin Urie, a scientist who’s worked for Denver Water for nearly 30 years. “I think we realized with the veto of Two Forks that we needed to think about things differently.”
He believes that while Denver Water has long taken environmental impacts into consideration with its plans, it didn’t engage with local stakeholders — like conservation and environmental groups and Western Slope governments — until after the Two Forks project died.
There’s a demographic change underway as well: Many of the Denver metro area’s new residents also want to play in Western Slope rivers on the weekends. That has pushed Denver Water leadership to put a larger emphasis on environmental stewardship, Urie said.
But all those new residents still need water. Denver Water delivers water to about 1.4 million people across the metro, about double what it did some 60 years ago. Conservation efforts have kept overall demand relatively low in recent years. But with more people moving to Denver every day, Denver Water expects its demand to rise 37 percent by 2032 from 2002 levels.
The Fraser River is key to Denver Water’s plan to head off a shortfall in the relatively near future. The agency wants to divert half of the remaining flows from the Fraser and its tributaries through the Moffat Tunnel to Gross Reservoir near Boulder. (The proposed expansion of Gross has started its own fight, which CPR News’ Grace Hood chronicled last month.) It would be treated at the agency’s plant in Lakewood, and eventually delivered to customers across the metro.
The agency expects to have all of its necessary permits by 2018 and construction could begin in 2019 or 2020. But to get those permits, Denver Water has agreed to be part of a group that includes Grand County officials and environmentalists called “Learning by Doing.” These different players are often at odds when it comes to water issues.
Urie said Denver Water’s participation shows its desire to do right by the environment and local stakeholders. They’ve helped fund an ambitious project that will engineer the Fraser River’s flow on a nearly mile-long stretch between Fraser and Tabernash, squeezing it to make it narrower, deeper and colder — and thus healthier.
But is that what’s best for the river?
Urie thought about that question for a minute, and then chose his words carefully:
“Clearly the system would be better if we weren’t using the water resources for other uses. But that’s not the scenario we are dealing with,” Urie said.
Trout Unlimited Sees Opportunity
The Fraser River project’s biggest booster is Kirk Klancke, president of the Colorado River Headwaters Chapter of Trout Unlimited. For him personally, it’s a way to help a river that he’s lived near and played in for 45 years.
“I can’t talk about it without getting all emotional. My life’s been spent on this river,” he said.
He sees it as a chance to restore a part of the river popular with anglers called the Fraser Flats. Here, the brush-lined river levels out after tumbling through the pine forests of Berthoud Pass.
His playground is popular with others, too. Grand County is a short one- to two-hour drive from Denver. From fly fishing to alpine and nordic skiing to snowmobiling, it’s a tourist-based economy. And in Klancke’s eyes, all of that rests on the health of its water.
He’s watched the river dwindle and get warmer as more water has been pulled out of it. And that’s changed how his family has used it. When his children were young, they could stay in the river for only a minute or two.
“They’d come out and their lips would be purple and they’d be squealing,” Klancke said. “Now I throw my grandchildren in the river and they’re not in a hurry to get out. We spend up to an hour in a pool in the river.”
He’s watched this river that means so much to him get sicker and sicker; warm, shallow channels aren’t suitable for native fish and bugs. For years, he blamed the deteriorating environment on the Front Range and its water managers.
“I was a little radical because I urinated in diversion ditches. It’s about all I knew to do. I’ve matured quite a bit since then,” he said.
His turning point came when he got involved with Trout Unlimited.
“I loved their approach,” he said. “They were able to look at it in someone else’s shoes, which is what all mature people do. And then, move forward with opening up conversation.”
Such conversations are what led to the Fraser Flats project, Klancke said. When flows are low, like they were this fall, the river is shallow as it stretches across its native bed. The new channel will allow the river to recede and stay deeper — and cooler.
Essentially, that stretch of river will be turned into a creek. On its face, downsizing a river doesn’t sound like a big victory for environmentalists. But that’s not how Klancke looks at it. During peak flows in the spring, Klancke points out, the river will be nearly just as wild as it is now.
And moreover, Denver Water has to stay involved in the Learning by Doing group. So if environmental issues arise down the road, Klancke said the agency will be there to help solve them.
Is it a compromise? Yes, Klancke admits. But water managers own water rights in the upper Colorado Basin that they’ll use — with or without his blessing. The right to divert water for “beneficial uses” is enshrined in the Colorado Constitution.
“We have to face reality here,” Klancke said. “There is no more mighty Upper Colorado. There’s only keeping what’s left healthy.” [ed. emphasis mine]
WildEarth Guardians Stakes Out Moral High Ground
Like Klancke, Jen Pelz, wild river program director for WildEarth Guardians, has had her own evolution in thought toward environmental causes. Earlier in her career, she was a water lawyer in Denver who represented clients like the city of Pueblo that were taking water from Western Slope rivers.
But eventually she felt a pull toward environmental advocacy. Pelz credits that with childhood days spent on the banks of a tributary to the Rio Grande in New Mexico.
“It was kind of the place that I could go just be myself,” she said. “I developed a really strong connection to the river there.”
She was drawn to the confrontational, no-holds-barred approach used by WildEarth Guardians. The group is known for its headline-grabbing lawsuits. Most recently they sued the federal government over haze in Western Colorado and leases to coal mines.
The approach seems to be working, at least by WildEarth Guardian’s measure. The haze lawsuit ended in an agreement where a coal mine and coal-fired power plant in Nucla, south of Grand Junction, will shut down in the next six years. A power plant in Craig, Colorado will shut down one of its units too.
“We’re willing to not be liked by the general public, or by particular industries,” Pelz said. “And I think it takes that kind of moral integrity and just knowing where you stand on the issues, to really push the envelope.” [ed. emphasis mine]
Pelz is not interested in compromise on the Fraser River. She faults Trout Unlimited for starting negotiations at the wrong place. In her view, the baseline shouldn’t be where the river is now with about 60 percent of it being diverted. The conversation needs to start with the river at its natural flows, she said.
“The harm has already been done,” Pelz said.
If the Fraser River is going to be saved, she says, it’ll happen by letting more water back into the river — not by taking more out. As the climate warms, she says the river will need all the help it can get.
“Let’s start dealing with it now. Let’s have that hard conversation now, not 50 years from now when there’s no water left to have a conversation about,” she says.
Pelz says her organization, and another group called Save the Colorado, are considering litigation once final permits are approved. That could happen in 2018.
Such tactics doesn’t make Pelz a lot of friends. She said she’s been ostracized from her former clique of water lawyers. It’s hard for her to get meetings with government regulators.
WildEarth Guardians’ relationship with the greater environmental community is similarly strained. She said Denver Water is more willing to meet with environmentalists now because they’ve softened. And she’s upset with what Trout Unlimited has become in the eyes of regulators.
“Trout Unlimited has been deemed by Denver Water and the state of Colorado as being the environmental voice,” Pelz said. “They get invited to the table because they have this role in communities, which I don’t think is a bad thing, but they don’t necessarily represent all of the different interests in the environmental community.”
As a result, she said, groups like hers are being left out of the conversation.
“They don’t talk to us. They don’t ask us what we think. And I’ve called them. And I’ve had meetings with them. I’ve asked them what they think. And they’ve told me they don’t like our approach. And I understand that. But I think that it works both ways.”
Pelz said it can be hard to be out “towing the left line.” Everybody likes to be liked, she said. But she’s decided that over the long run, her methods are what will make a difference. To do anything else would be surrender.
“I don’t want to have to explain to my kids that I gave up the fight for this river that is the namesake of our state, the state they were born in, because I was willing to compromise,” she said. “We may not win, but damn we are going to try.”
American Rivers Finds Room To Maneuver
When Matt Rice, Colorado River basin director for American Rivers took the job a few years ago, he made the decision to put aside his dreams for what he really wanted. Instead, he focuses on what he thinks he can actually pull off.
“In a perfect world, I’d like to see all the wild rivers in this country and in this state flowing freely and filled with fish, doing what rivers should do,” Rice said. “It’s not realistic.”
But he acknowledges that groups like WildEarth Guardians can make his job easier at times. When Guardians files a lawsuit and makes a bunch of people mad, a group like his can step in and talk with state regulators and businesses. Guardians essentially provides cover for groups closer to the political center, he said.
“Their advocacy pushes everybody, not just conservation organizations, kind of further to the left. And I think that’s good,” Rice said.
But there’s a downside. Lawsuits and sharply worded press releases can sting, and are not easily forgotten. And Rice worries that aggressive tactics from far-left groups lead to skeptical parties like ranchers or Front Range water managers lumping all environmentalists together.
“That has the potential to undermine the progress we’re making,” he said.
Looking To The Future
With the publication of last year’s Colorado Water Plan, a first for the state, officials are trying to turn the page on Colorado’s long fight over water. The plan, which officials describe as a roadmap to sustainability, stresses collaboration between competing interests and conservation of the increasingly precious resource.
“Now is the time to rethink how we can be more efficient,” Gov. John Hickenlooper said at the water plan’s introduction in November 2015.
Diverting more water should be the last-possible solution, Hickenlooper said. That’s welcome news to environmentalists like Matt Rice of American Rivers.
Rice said they are supportive of the Fraser River diversion plan for the same reasons Trout Unlimited is, though they aren’t part of the Learning by Doing group. But he hopes the Fraser diversion, and another major project in the works called Windy Gap, are the last trans-mountain diversion projects.
There just isn’t enough water on the Western Slope, he said. And if another one comes up, Rice said they’ll fight it with everything they have.
“We’re kind of at the cliff right now in the Colorado River Basin,” he said.
Collaboration and compromise will certainly be part of environmentalism’s future in Colorado. But as groups like WildEarth Guardians continue to find success in the courts, the advocacy ecosystem has room for other strategies too.
A Colorado Water Conservation Board proposal, sent to state lawmakers last week, recommends the stream-saving action to meet state environmental and economic goals. It remains unclear who would enforce the community watershed plans.
But there’s little doubt streams statewide are strained by thirsts of a growing population expected to double by 2060, according to state officials. And a Denver Post look at the latest water quality data found that 12,975 miles of streams across Colorado (14 percent of all stream miles) are classified as “impaired” with pollutants exceeding limits set by state regulators.
Creating local watershed plans to save streams is essential, said James Eklund, the CWCB director and architect of the year-old Colorado Water Plan. Eklund pointed to low-snow winters and drought in California’s Sierra Nevada, where 2015 snowpack at 5 percent of average forced a declaration of a state of emergency requiring 25 cuts in urban water use.
“When our Colorado mountain snowpack drops below 60 percent of average, we get nervous. If it happens in the Sierras, it can happen in the Rockies,” he said. “We need to protect certain streams before a crisis. We have got to get on this quickly.”
No single agency oversees waterway health. State natural resources officials monitor flow levels in streams and rivers. They run a program aimed at ensuring sufficient “in-stream flow” so that, even during drought, streams don’t die.
Meanwhile, the Colorado Department of Public Health and Environment sets standards on maximum levels of pollutants that people and companies are allowed to discharge into waterways. In 2015, only 51.6 percent total stream and river miles in Colorado met quality standards, and 30.1 percent of lake surface acres met standards, according to a CDPHE planning document.
“If stream flows are low, there is less dilution in the stream to handle the addition of pollutants through permitted discharges,” CDPHE water quality director Pat Pfaltzgraff said in responses sent by agency spokesman Mark Salley.
Yet CDPHE officials do not make recommendations to natural resources officials about water flows necessary to improve stream health.
The health department has made separate “watershed plans.” CDPHE officials “are considering broadening the division’s watershed plans to include ecosystem health that might be more consistent with stream management plans.”
Pfaltzgraff declined to discuss stream health…
CWCB chairman Russ George supported the push to create local watershed plans, to include detailed maps covering every stream.
“Every stream and tributary needs to be inventoried. … It should have been done a long time ago,” George said in an interview last week.
“We have kind of hit the population and demand place where we have to do it. We didn’t have to do it for the first part of history because the population was small and there wasn’t the impact of all the issues we are getting into now,” he said.
The CWCB voted unanimously last month to ask lawmakers to approve $5 million a year for up to five years to launch local stream planning.
The plans are to be developed within the eight river basin “roundtable” forums that Colorado has relied on for addressing water challenges. These groups draw in residents with interests in stream health who helped hash out the Colorado Water Plan, which was finalized last year and calls for statewide cuts in per person water use by about 1 percent a year.
Conditions along Colorado streams vary, said Bart Miller, healthy rivers program director for Boulder-based Western Resource Advocates. “There are plenty of streams that have problems.”
While state natural resources officials run the program aimed at keeping at least some water in heavily tapped streams, survival in a competitive environment is complex. Leaving water in streams for environmental purposes often depends on timing, when the mountain snowpack that serves as a time-release water tower for the West melts, the amount of snowpack, and needs of cities, pastures and farms.
Collaborative local forums to find flexibility to revive streams “is a great approach.” However, state officials eventually may have to play a central role converting plans into action, Miller said.
“The state should help both in funding the planning but also in implementing the plans,” he said. “We have a lot of work to do. This matters because this is about ‘the Colorado brand.’ Everyone depends on healthy rivers.”
The roundtable forums in communities draw in diverse stakeholders from cattlemen to anglers.
Irrigators and other water users west of Aspen already have created a “stream management plan,” for the Crystal River, seen as a model local effort. Their planning included an assessment of watershed health that found significant degradation above the confluence with the Roaring Fork River. They set a goal of reducing the estimated 433 cubic feet per second of water diverted from the river by adding 10 to 25 cfs during dry times. They’re developing “nondiversion agreements” that would pay irrigators to reduce water use when possible without hurting agriculture, combined with improving ditches and installation of sprinkler systems designed to apply water to crops more efficiently.
Enforcement of plans hasn’t been decided. “We’d like to see more enforcement” of measures to improve stream health, Rocky Mountain Sierra Club director Jim Alexee said. “We definitely think there’s room to do more. We also want to be respectful of the governor’s watershed process.”
Colorado has no history of relying on a central agency to enforce water and land use, CWCB chairman George pointed out.
“When you have a system designed to have everybody at the table, what you’re doing is recognizing there is a finite resource that is shared by everybody. And impacts are shared by everybody statewide. In order to keep from having some force dominate in ways that would not account for all statewide impacts, you need to diffuse the conversation into all areas. That is what roundtables do,” he said.
“When you do that, you’re going to get a better statewide result over time. … It is a process that is designed to get as many interests into the decision-making as you can. … It gets harder, of course, as the supply-demand makes pinches. For the rest of our lives, it is going to be that way.”
From the Community Agriculture Alliance (Todd Hagenbuch) via Steamboat Today:
On Tuesday, people from across the state convened for the 2016 Colorado Ag Water Summit at the Jefferson County Fairgrounds near Denver. Northwest Colorado was well-represented by folks who live and work in both the Yampa and White River basins.
The subject of this year’s summit was ATMs. No, not the machines that dole out cash, but Alternative Transfer Methods. ATMs are creative ways to work within the confines of Colorado water law to enable water rights to be used temporarily for uses other than what they are decreed for.
You might remember that there are specific uses attached to an individual’s water right in Colorado – an irrigation right can only be used to grow crops, and a municipal right can only be used to provide water for a specific, set-area of residences, business, etc. If a water right is purchased for a use other than the decreed use, the owner must go to Water Court to get the decreed use changed.
When approved, these change cases typically take agricultural uses and turn them into municipal uses, enabling thirsty cities to provide water for an ever-increasing number of customers. This ‘Buy and Dry’ approach takes irrigated farm land out of production. Because these rural areas are losing agricultural productivity, they also lose farmers, farm implement dealers, local bankers, the local grocery store, etc. Eventually, entire communities disappear.
Landscapes also change from an environmental and scenic perspective when they are no longer irrigated. John McKenzie, who represented the Ditch and Reservoir [Company] Alliance at the summit, summarized it well when he said, “We’ve created a constructed landscape and environment we all really like.” That change was because we started irrigating otherwise arid lands.
ATMs aim to let one user (usually a municipality) use another’s right (usually a farmer’s) temporarily. Legislation passed recently allows for these arrangements three out of every ten years.
Since the legislation was passed, several new ATMs have been created. The Ag Water Summit featured panels of speakers who shared their experiences of participating in ATM projects. Ag producers, municipality and industrial, and environmental and recreational interests were represented.
Most of the panelists were pleased with their ATM experiences, although panelists also talked about the challenges that need addressed if this type of water sharing is to succeed in the intermountain west. Some of those challenges include: cost, risk and uncertainty, lack of infrastructure to store and convey water from one user to another and the need for all parties to have a long-term agreement in order to make plans for the future (investments, contracts, etc.).
Regarding those challenges, Andy Jones, a lawyer specializing in water law out of northern Colorado, said “Think of ATMs as a big water supply project: they will need the same infrastructure, investment, etc. as any ‘new source’ project.”
Colorado will continue to be challenged by more demand for water than we have supply to accommodate, but thinking of new ways to share it will help us to meet more of those needs. And continuing to bring people together to discuss it will help, too.
Todd Hagenbuch is the agriculture extension agent for Colorado State University Routt County Extension.
The Upper Arkansas Water Conservancy District board of directors voted at its recent meeting to file an objection to the Security Water District’s court application for a change of water rights on Hayden Creek in Coaldale (Division 2, case 2016CW3055).
In discussing whether or not to get involved in the case, Upper Ark directors mentioned unresolved issues with Hill Ranch near Nathrop after the Pueblo West Metropolitan District purchased the ranch, changed the water right and dried up the land.
The directors’ discussion highlighted three main concerns:
Ensuring that the amount of water claimed by Security is not excessive.
Ensuring that Security administers the amount and timing of return flows so that other water rights are not injured by the change of use.
Ensuring that the dried-up ranch land is properly revegetated.
Security acquired the 1894 agricultural water rights when it purchased a Coaldale ranch that, according to the filing, historically used the water to irrigate 195 acres.
The filing cites Security’s own study of consumptive water use on the ranch from 1912 through 2006 in asserting that historical water use “resulted in net stream depletions (consumptive use credits) of approximately 236 annual acre-feet.”
Security seeks to change the Hayden Creek water rights from an agricultural use in Coaldale to a municipal use in Security, allowing the water to flow into Pueblo Reservoir before diverting the proposed 236 acre-feet per year through the Fountain Valley Conduit.
The Security filing indicates that the water right may be used for continued irrigation on the ranch “to the extent not limited by municipal use of the depletion credits and dry-up requirements.”
In the filing Security commits to constructing a Coaldale augmentation station to measure and administer the Hayden Creek water rights. The filing also indicates Security “may construct a groundwater recharge facility” that “may be used for recharge to the aquifer and later delivery of accretion credits back to the Arkansas River” (i.e., return flows).
This would help prevent injury to other water rights holders because the return flows would be delivered to the river in the same location as the historical return flows created by irrigating the ranch.
But the filing also indicates that Security may “replace return flow obligations to the Arkansas River” by means of “releases from Pueblo Reservoir,” which could injure other water rights between Coaldale and Pueblo Reservoir.
Since Security owns the Hayden Creek water rights, the Upper Ark district’s filing won’t prevent the change of use, but as an objector, the conservancy district will receive future filings in the case and will have the opportunity to negotiate stipulations to address concerns.